Lawyers critical of foetal homicide laws

Lawyers say they are opposed to the introduction of foetal homicide laws in South Australia except in cases where pregnant mothers are assaulted.

Family First MP Robert Brokenshire is drafting a bill that would see criminal charges apply to people who cause the deaths of unborn babies in circumstances including assaults, domestic violence and car accidents where drivers are found to be at fault.

Debate about the issue has been prompted by a recent crash in which an unborn baby and her pregnant mother were killed.

The unborn baby's death was included in the road toll but not reflected in the charges laid against the alleged driver.

Mr Brokenshire says he has been planning legislation for several months to amend the Criminal Law Consolidation Act.

The immediate past president of the Australian Lawyer's Alliance, Greg Barns, says the question is a fraught one.

"It is an area where we ought to be looking at compassion and keeping the criminal law well away, except for those extreme cases where, for example, a person deliberately assaults another person who is pregnant," he said.

"Outside of those cases, there's no room for the criminal law in this area."

Mr Barns says a case in New Zealand where a driver was charged after his pregnant wife lost her baby highlights the problems with Mr Brokenshire's proposal.

"The police in New Zealand are using, for the first time ever, some legislation to prosecute this man in relation to the death of the child, the unborn child," he said.

"There has been widespread condemnation in New Zealand... about the police tactics in this particular case because people when they're driving their vehicles may make mistakes when they're driving.

"It is one thing to charge a person with careless driving or with even negligent driving. It is another thing to say that they're responsible for the death of that child."

Mr Barns says foetal protection laws in other states only apply in cases where pregnant women are assaulted.

"It is not there to penalise people who make mistakes and have to live with the consequences of those mistakes for the rest of their lives," he said.

"I think this is legislation which, if it were applied, would be extraordinarily cruel to many, many people in South Australia."

'Not about abortion'

Mr Brokenshire says he has based his changes on Queensland's laws where a person can be charged for killing an unborn child, such as by assault or passing on a serious illness.

Last year, Western Australia drafted similar laws but they are yet to be put before Parliament.

Mr Brokenshire met with Attorney-General John Rau on Tuesday to discuss his proposal.

Mr Rau says the meeting was productive but would not comment further.

Mr Brokenshire says he presented the Attorney-General with a briefing paper about his proposal.

"He's agreed to look at that and work together with Family First on this issue with an endeavour to hopefully strengthen the laws and send a strong message to perpetrators that a pregnant lady must be particularly cared for," he said.

"The situation at the moment where people can effectively seriously assault a pregnant lady, the baby dies and frankly the penalties are very inadequate.

"The key change I'm seeking is to have a clause in the act that actually says any person who unlawfully assaults a female pregnant with a child and destroys the life of or does grievous bodily harm to or transmits a serious disease to the child before its birth, commits a crime with a maximum penalty of imprisonment for life.

"It's focused on the protection of a pregnant lady who has a baby that would have been born and had a great life, but sadly, because of assaults, the way that a motor vehicle is driven, murder, et cetera, that doesn't occur.

"What I'm doing at the moment is seeking some more expert legal opinion to make sure that we've got the wording right.

"I will then send a copy of that draft amendment to the Attorney General and we'll work on the issue together."

Mr Brokenshire says he wants to reassure critics of his proposal that it has nothing to do with abortion.

"I want to take the debate on abortion out of this because there's a separate act that has nothing to do with what I'm proposing here," he said.

"South Australia does already have legislation in criminal law that deals with the issues around procuring the miscarriage of a pregnancy. That side's covered."

But Mr Brokenshire admits his proposal will inevitably raise the contentious issue of when human life begins.